United States District Court, C.D. California, Eastern Division
MEMORANDUM OPINION AND ORDER
I.
PROCEEDINGS
Plaintiff
filed this action on October 16, 2015, seeking review of the
Commissioner's denial of her applications for Disability
Insurance Benefits ("DIB") and Supplemental
Security Income ("SSI") payments. The parties filed
Consents to proceed before the undersigned Magistrate Judge
on November 6, 2015, and November 19, 2015. Pursuant to the
Court's Order, the parties filed a Joint Stipulation on
June 7, 2016, that addresses their positions concerning the
disputed issues in the case. The Court has taken the Joint
Stipulation under submission without oral argument.
BACKGROUND
Plaintiff
was born on May 3, 1970. [Administrative Record
("AR") at 19, 169, 173.] She has past relevant work
experience as a home attendant and teacher aide II. [AR at
19, 44.]
On
April 25, 2012, plaintiff protectively filed an application
for a period of disability and DIB, and on April 27, 2012,
she protectively filed an application for SSI payments,
alleging in both that she has been unable to work since
August 1, 2010. [AR at 10, 169-72, 173-81.] After her
applications were denied initially and upon reconsideration,
plaintiff timely filed a request for a hearing before an
Administrative Law Judge ("ALJ"). [AR at 10,
118-20.] A hearing was held on February 18, 2014, at which
time plaintiff appeared represented by an attorney, and
testified on her own behalf. [AR at 26-47.] A vocational
expert ("VE") also testified. [AR at 43-46.] On
April 22, 2014, the ALJ issued a decision concluding that
plaintiff was not under a disability from August 1, 2010, the
alleged onset date, through April 22, 2014, the date of the
decision. [AR at 10-21.] Plaintiff requested review of the
ALJ's decision by the Appeals Council. [AR at 5-6.] When
the Appeals Council denied plaintiff's request for review
on September 18, 2015 [AR at 1-3], the ALJ's decision
became the final decision of the Commissioner. See Sam v.
Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per
curiam) (citations omitted). This action followed.
III.
STANDARD OF REVIEW
Pursuant
to 42 U.S.C. § 405(g), this Court has authority to
review the Commissioner's decision to deny benefits. The
decision will be disturbed only if it is not supported by
substantial evidence or if it is based upon the application
of improper legal standards. Berry v. Astrue, 622
F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
"Substantial
evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1159 (9th Cir. 2008) (citation and internal quotation
marks omitted); Reddick v. Chater, 157 F.3d 715, 720
(9th Cir. 1998) (same). When determining whether substantial
evidence exists to support the Commissioner's decision,
the Court examines the administrative record as a whole,
considering adverse as well as supporting evidence. Mayes
v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)
(citation omitted); see Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A]
reviewing court must consider the entire record as a whole
and may not affirm simply by isolating a specific quantum of
supporting evidence.") (citation and internal quotation
marks omitted). "Where evidence is susceptible to more
than one rational interpretation, the ALJ's decision
should be upheld." Ryan, 528 F.3d at 1198
(citation and internal quotation marks omitted); see
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006) ("If the evidence can support either affirming or
reversing the ALJ's conclusion, [the reviewing court] may
not substitute [its] judgment for that of the ALJ.")
(citation omitted).
IV.
THE EVALUATION OF DISABILITY
Persons
are "disabled" for purposes of receiving Social
Security benefits if they are unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or which has
lasted or is expected to last for a continuous period of at
least twelve months. 42 U.S.C. § 423(d)(1)(A);
Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
1992).
A.
THE FIVE-STEP EVALUATION PROCESS
The
Commissioner (or ALJ) follows a five-step sequential
evaluation process in assessing whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920;
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995), as amended April 9, 1996. In the first step,
the Commissioner must determine whether the claimant is
currently engaged in substantial gainful activity; if so, the
claimant is not disabled and the claim is denied.
Id. If the claimant is not currently engaged in
substantial gainful activity, the second step requires the
Commissioner to determine whether the claimant has a
"severe" impairment or combination of impairment
significantly limiting her ability to do basic work
activities; if not, a finding of nondisability is made and
the claim is denied. Id. If the claimant has a
"severe" impairment or combination of impairments,
the third step requires the Commissioner to determine whether
the impairment or combination of impairments meets or equals
an impairment in the Listing of Impairments
("Listing") set forth at 20 C.F.R. part 404,
subpart P, appendix 1; if so, disability is conclusively
presumed and benefits are awarded. Id. If the
claimant's impairment or combination of impairments does
not meet or equal an impairment in the Listing, the fourth
step requires the Commissioner to determine whether the
claimant has sufficient "residual functional
capacity" to perform her past work; if so, the claimant
is not disabled and the claim is denied. Id. The
claimant has the burden of proving that she is unable to
perform past relevant work. Drouin, 966 F.2d at
1257. If the claimant meets this burden, a prima
facie case of disability is established. Id.
The Commissioner then bears the burden of establishing that
the claimant is not disabled, because she can perform other
substantial gainful work available in the national economy.
Id. The determination of this issue comprises the
fifth and final step in the sequential analysis. 20 C.F.R.
§§ 404.1520, 416.920; Lester, 81 F.3d at
828 n.5; Drouin, 966 F.2d at 1257.
B.
THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
At step
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since August 1, 2010, the
alleged onset date.[1] [AR at 12.] At step two, the ALJ concluded
that plaintiff has the severe impairment of status post
fusion and discectomy of the cervical spine at C5 to C6.
[Id.] He found plaintiff's alleged impairments
of ovarian tumor and depression to be non-severe. [AR at
12-13.] At step three, the ALJ determined that plaintiff does
not have an impairment or a combination of impairments that
meets or medically equals any of the impairments in the
Listing. [AR at 14.] The ALJ further found that plaintiff
retained the residual functional capacity
("RFC")[2] to perform light work as defined in 20
C.F.R. §§ 404.1567(b), 416.967(b), [3] except "she
is able to occasionally balance, stoop, kneel, crouch, crawl,
and climb. In addition, she is able to perform occasional
overhead reaching with the bilateral upper extremities."
[AR at 15.] At step four, based on plaintiff's RFC and
the testimony of the VE, the ALJ concluded that plaintiff is
unable to perform any of her past relevant work as a home
attendant and teacher aide. [AR at 19, 44-45.] At step five,
based on plaintiff's RFC, vocational factors, and the
VE's testimony, the ALJ found that there are jobs
existing in significant numbers in the national economy that
plaintiff can perform, including work as an
"inspector" (Dictionary of Occupational Titles
("DOT") No. 529.687-114), "packager" (DOT
No. 559.687-074), and "office helper" (DOT No.
239.567-010). [AR at 20, 45.] Accordingly, the ALJ determined
that plaintiff was not disabled at any time from the alleged
onset date of August 1, 2010, through April 22, 2014, the
date of the decision. [AR at 20-21.]
V.
THE ALJ'S DECISION
Plaintiff
contends that the ALJ erred when he: (1) failed to properly
develop the record; and (2) considered plaintiff's
subjective symptom testimony. [Joint Stipulation
("JS") at 3.] As set forth below, the Court agrees
with plaintiff, in part, and remands for further proceedings.
A.
FAILURE TO DEVELOP THE RECORD
Plaintiff
argues that the ALJ did not fully and fairly develop the
record because he "failed to obtain an appropriate
consultative examination to determine the severity of
plaintiff's physical impairments and to determine what
limitations plaintiff would have from her physical
impairments." [JS at 3.] Specifically, plaintiff notes
that the ALJ relied on the "only opinion evidence in the
file, " which was from the State Agency review
physicians, who "were only reviewing physicians, "
as there were no opinions or statements in the record from
plaintiff's treating physicians about her functional
limitations. [Id. (citing AR at 19).] Plaintiff
argues, therefore, that because there were "minimal
medical records in the file, " a consultative
examination "would have provided more evidence regarding
[her] physical impairments and limitations from someone who
actually examined" her. [Id. (citing AR at
19).] She contends that the ALJ has a duty to fully and
fairly develop the record, and that had he sent plaintiff for
a consultative examination, "he may have come to a
different conclusion regarding Plaintiff's physical
impairments and restrictions on Plaintiff's ability to
perform work-related activities." [JS at 3-4.]
Defendant
responds that this issue has been waived because at no time
during the administrative process did plaintiff raise the
issue that the record was in any way deficient. [JS at 5.]
Even if not waived, defendant contends that notwithstanding
plaintiff's speculations about what might have happened
had the ALJ sent plaintiff for a consultative examination,
substantial evidence, including nine exhibits of medical
records, supported the ALJ's findings. [JS at 4-5 (citing
AR at 256-525).] Defendant further argues that a consultative
examination is normally required where additional evidence
needed for a determination is not contained in the medical
source records, or where there is an ambiguity or
insufficiency in the evidence that must be resolved. [JS at 6
(quoting Reed v. Massanari, 270 F.3d 838, 842 (9th
Cir. 2001)).] Finally, defendant submits that plaintiff bears
the burden to establish the severity of her symptoms, and she
did not meet her burden. [Id.]
As a
general matter, it is plaintiff's duty to prove she is
disabled. Mayes, 276 F.3d at 459; 42 U.S.C. §
423(d)(5)(A) (claimant must furnish medical and other
evidence of her disability); 20 C.F.R. § 404.1512(c)
("You must provide medical evidence showing that you
have impairment(s) and how severe it is during the time you
say you are disabled"). While plaintiff bears the burden
of proving disability, the ALJ in a social security case has
an independent, "‘special duty to fully and fairly
develop the record and to assure that the claimant's
interests are considered.'" Smolen v.
Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting
Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.
1983)); Tonapetyan v. Halter, 242 F.3d 1144, 1150
(9th Cir. 2001) (citation omitted). T h i s d u t y is
triggered only when there is ambiguous evidence or when the
record is inadequate to allow for proper evaluation of the
evidence. Mayes, 276 F.3d at 459-60. This principle
does not allow a plaintiff to shift her own burden of proving
disability to the ALJ. Id. at 459. One of the tools
available to an ALJ in developing a record is the
consultative examination. See 20 C.F.R. ยงยง
404.1512(e), 404.1517 ("If your medical sources cannot
or will not give us sufficient medical evidence about your
impairment for us to determine whether you are disabled . .
., we may ask you to have one or more physical or mental
examinations or tests."). The Commissioner has broad
latitude in ordering such an examination when there is
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